OTTAWA – The Supreme Court of Canada ruling on the fate of a comatose Toronto man clarifies how to deal with end-of life dilemmas in Ontario, but raises questions about how similar scenarios should be dealt with in the rest of Canada, experts say.

In a 5-2 decision Friday, Canada’s highest court ruled doctors at Toronto’s Sunnybrook Health Sciences Centre cannot not unilaterally decide to withdraw life support measures from Hassan Rasouli, a retired engineer who has been in a coma since 2010.

The court found that under Ontario’s Health Care Consent Act, the doctors needed to obtain approval from Rasouli’s family to discontinue care.

Failing that, they must apply for permission from Ontario’s Consent and Capacity Board, a quasi-judicial body that addresses matters of consent under Ontario’s Health Care Consent Act.

The court stressed, however, that the ruling applied only to cases in Ontario, and did not address the broader ethical question of who has the final say -­ doctors or family – ­ in end-of-life care for incapacitated people. In effect, it validated the role of Ontario’s review board, which has been in place for 17 years, saying it has the jurisdiction to determine Rasouli’s case.

A handful of other provinces have consent legislation similar to Ontario’s, but none have dispute resolution boards, meaning similar cases elsewhere will have to be tested in court.

Writing for the majority on the bench, Chief Justice Beverley McLachlin upheld the decision of two lower courts rejecting the doctors’ position that they did not have to obtain consent to end life support measures under Ontario’s laws. The doctors had argued the Health Care Consent Act did not apply in Rasouli’s case because “consent is not required for withdrawal of life support that does not provide any medical benefit to the patient.”

Consent, they argued, is only required to begin treatment, not end it. Furthermore, ending care is not considered treatment at all.

But the court found the doctors’ interpretation of the language in Ontario’s law was too narrow.

“First ‘treatment’ and ‘health-related purpose’ are not confined to procedures that are of medical benefit in the view of the patient’s medical caregivers,” McLachlin wrote.

The term “treatment,” she said, should be broadly interpreted to include “anything that is done” for a patient under a variety of circumstances – ­ palliative, therapeutic, preventative, diagnostic or cosmetic.

Rasouli fell into a coma after undergoing brain surgery for a benign tumour in 2010. His physicians at Sunnybrook gave him a poor prognosis with little chance of meaningful recovery, although his diagnosis was recently upgraded from “vegetative” to “minimally conscious.”

Rasouli’s family maintains his condition is improving and sought an initial court injunction to stop the doctors from ending life support. In the ruling, the court rejected the doctors’ argument that withdrawing care did not constitute treatment.

“In forestalling death, life support arguably falls within ‘therapeutic’ and ‘preventative’ purposes listed in the definition of ‘treatment,’ ” she wrote.

The court also rejected a third argument from the doctors, that requiring consent to withdraw life-sustaining practices in cases where there is no hope of recovery put them in an “untenable ethical situation.”

Dilemmas in end-of-life care are “inherent to medical practice,” McLachlin wrote, and should not undermine provisions set out in the act that clearly provide for a “meaningful role” of family and surrogate decision-makers in providing consent for treatment, including the discontinuation of life-prolonging measures and the beginning of palliative care.

The ruling validates Ontario’s procedure, but raises questions about how other provinces and territories should address end-of-life issues, said Mark Handelman, a lawyer representing Ontario’s Consent and Capacity Board.

In the end, it may result in an increased reliance on the courts.

“For other provinces . . . this judgment may lead physicians to decide that instead of telling the family they’re going to discontinue life support, they start the court application to get authority to discontinue life support,” he said.

The ruling may also inspire other provinces to establish tribunals similar to Ontario’s, Handelman said, but each may have to first test its own statutes in court, added Arthur Schafer, director of the centre for professional and applied ethics at the University of Manitoba.

Schafer said the court’s decision missed an opportunity to provide clear national guidelines on a perennially murky issue. “It’s a disappointment,” he said.

Schafer added the opinion of the two dissenting justices, Andromache Karakatsanis and Rosalie Abella, had held that Ontario’s act should be interpreted the same way as common law, which has precedent allowing for physicians to unilaterally discontinue care when they feel it is futile.

They common law interpretation gives proper weight to physician integrity, said Schafer, and would also be consistent across all provinces and territories.

“I think the court got it wrong.”

But both sides in the Rasouli case said they felt the ruling would go a long way toward clarifying end-of-life protocol in future.

“This was a case that is emblematic of similar cases across the country,” where there really has been a grey zone,” said Dr. Andy Smith, chief medical executive at Sunnybrook, where Rasouli remains in intensive care.

“Sunnybrook really appreciates the guidance the court has provided. It really has taken the next step in this difficult scenario.”

He added doctors at Sunnybrook have not ruled out going to the Consent and Capacity Board for a determination on Rasouli’s future care. “There is still a possibility of that.”

Gary Hodden, a lawyer for Rasouli and his wife, Parichehr Salasel, said his clients were “elated” at the court decision, despite the fact their fight may continue at the review board.

No matter the outcome for Rasouli ­ or other cases across the country ­ the court has made a strong statement that end-of-life decisions require input from both medical professionals and family members, Hodder said.

And that, he added, is a crucial first step.

“Control over life and death is a supreme responsibility,” he said. “I think it’s important for the community at large to know these decisions are not going to be made without some sort of oversight.”

Jessica is the 2013-14 Michelle Lang Fellow with Postmedia News. She's on a one-year adventure working out of Ottawa and Calgary covering national politics, news and chipping away at a special project... read more on the relationship between work and personal identity in Canada's rapidly changing economy.View author's profile